Donald Trump's Legal Gambit Might Just Succeed

Donald Trump is seeking to have his Washington, D.C. election interference case quashed, calling it a "vindictive prosecution."

Much of his submission, filed early on Tuesday, hangs on whether alternative electors are a criminal conspiracy or a symbolic act of defiance that is rooted in American history.

Trump was charged in August under a four-count, 45-page indictment that accuses him of conspiring to defraud the U.S. by preventing Congress from certifying Democrat President Joe Biden's victory and to deprive voters of their right to a fair election. Justice Department special counsel Jack Smith is leading the prosecution team.

"The core conduct alleged in the indictment relating to the presentation of alternate electors had a historical basis that dates back to 1800 and spans at least seven other elections," Trump's application to quash the charges stated.

"There are no other prosecutions in American history relating to these types of activities. The allegations in the indictment involve constitutionally authorized activities by President Trump as Commander in Chief, as well as speech and expressive conduct by the First Amendment."

"Given this context, it is no surprise that in the months following the 2020 election, senior government officials rejected an investigation of President Trump as unfounded and potentially unconstitutional," the filing stated.

"Expressive conduct" in First Amendment law has long been used to protect non-verbal free speech, such as an anti-war student wearing a black armband to school or Jehovah Witness children refusing to salute the American flag in class.

Trump is now saying that the alternate electors who signed off a Trump victory across the U.S. were engaged in symbolic free speech to show their disapproval of Biden and the way that the election was run.

Edward B. Foley, a constitutional law professor at Ohio State University, said that there is a long history of alternate electors in American politics that stretches back hundreds of years.

Writing for the policy think tank, Just Security, Foley said that Trump supporters signing off on his supposed victory in seven battleground states was "a fool's errand, since there never was a chance that Congress was going to recognize Trump as the winner."

That is just how Trump's lawyers are hoping a federal court, and likely the Supreme Court, will view their actions.

Newsweek has emailed Justice Department lawyers and Trump's legal team for comment.

As Foley points out, Trump's Vice President, Mike Pence, acting as Senate president, would not even open the envelope that contained the confirmation from the alternative electors.

"Mike Pence, as Senate president, would not even let these pro-Trump submissions be opened in the joint session of Congress because, without any claim of any backing from any part of their state's government, they could not be acknowledged as even asserting to be official electoral votes entitled to be considered by Congress," Foley wrote.

So was the action of Trump's supporters merely symbolic free speech and is there, as his lawyers claimed in their submissions, a long historic precedent?

Foley notes that Florida was hotly contested in the 1876 election between Republican candidate, Rutherford Hayes, and Democrat, Samuel Tilden.

Florida's attorney general, a Democrat, purported to certify Tilden the winner of the state. On the same day, however, Republican electors in Florida voted for Hayes, backed by a certification from the state's canvassing board.

Later, Florida's judiciary and legislature would act to undo the canvassing board's certification. There were no indictments of any of those involved as it was considered a legal dispute.

"In South Carolina, by contrast, there was no one with any colorable claim of official authority in a position to certify Tilden the winner. Still, Democrats there were claiming that he had won" and still "submitted their spurious electoral votes to the Senate president".

"None of these South Carolina individuals (as far as I know from my research) were criminally investigated or prosecuted for making this assertion," Foley wrote, noting that a similar dispute occurred in Vermont in 1876.

Other disputes occurred throughout American history, such as both sides claiming to sign off on the winning candidate in Hawaii in the 1960 election between John F. Kennedy and Richard Nixon.

Foley said that such acts, done by both Democrats and Republicans, are distinct from cases of forgery, which have occurred in elections in the past.

"Openly asserting that one is the duly appointed elector of state, even when that claim is utterly without merit[...]is to make an argument about one's status under the law. It is not an attempt to dupe recipients with counterfeit papers," he writes.

Judging from Tuesday's court submissions, that is the logic that will get Trump and his co-accused released from the election interference charges.